Wilkinson v. Becker

Citations

• 185 Pa. 225
• 39 A. 885
• 1898 Pa. LEXIS 697

Syllabus

<p>Contract — Building contracts — Defective performance — Mechanic's lien.</p> <p>On a scire facias sur mechanic’s lien for plumbing and gas fitting in a house under a written contract, the defense set up was that plaintiff had not substantially performed the contract. It appeared that defendant had moved into the house, and for one year and a half there was a dispute between him and the plaintiff as to the character of the plumbing work. During this period there was no suggestion by defendant that the defects were of such a character as to release him from the payment of the whole price, and plaintiff’s right to a just compensation had been repeatedly recognized. Defendant finally wrote: “I will not accept the plumbing and gas fitting until all is complete, and unless you immediately comply with the contract, I will employ a competent plumber to do so, and deduct the cost from the contract price.” Held, (1) that while the use and occupation of the house imposed no liability on defendant to pay for the defective work, and none would have been imposed by remedying the defects, yet the notice given left the plaintiff free to do the work himself, or have it done at his cost by the defendant; (2) that plaintiff was entitled to recover the contract price less the amount paid by defendant to complete the work; (3) that a provision in the contract relating to the architect’s approval was waived by the undertaking of the defendant to complete the work, and deduct the cost from the contract price; (I) that formal acceptance of the notice by the plaintiff was not essential, because the notice was an affirmance of the defendant’s rights under the contract.</p>